New Jersey Department of Environmental Protection v. Alloway Township

Superior Court of New Jersey, Appellate Division

January 2, 2015

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,v.ALLOWAY TOWNSHIP and COUNTY OF SALEM, Defendants-Respondents/Cross-Appellants, and WILLIAM R. COBB, Defendant-Appellant/Cross-Respondent

Submitted October 7, 2014

Approved for Publication January 2, 2015.

Page 1146

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-95-08.

Before Judges MESSANO, OSTRER and HAYDEN. The opinion of the court was delivered by MESSANO, P.J.A.D.

Page 1147

[438 N.J.Super. 504] OPINION

MESSANO, P.J.A.D.

In this appeal we are called upon to construe provisions of the Safe Dam Act (the " SDA" ), N.J.S.A. 58:4-1 to -14, a statute enacted upon the Legislature's specific finding " that the condition of many dams, lakes, and streams throughout the State has been deteriorating at an alarming rate due to a chronic lack of maintenance," and " that these conditions have led to the collapse of dams, polluted lakes, stream flooding and property damage to homes, businesses, lake communities and public utilities." N.J.S.A. 58:4-11. The SDA casts a " broad net" of liability, New Jersey Department of Environmental Protection v. Mercer County Soil Conservation District, 425 N.J.Super. 208, 221, 40 A.3d 107 (Ch. Div. 2009), so that its remedial purpose -- " to protect the public from the loss of life and property in the event a dam fails, regardless of whether it is privately or publicly owned" -- is served. Id. at 218, 40 A.3d 107.

Under the SDA, the Commissioner (the Commissioner) of the Department of Environmental Protection (DEP) is vested with sweeping regulatory and enforcement powers. See, e.g., N.J.S.A. 58:4-3 (permitting the Commissioner to request surveys and plans of dams and reservoirs); N.J.S.A. 58:4-4 (permitting the Commissioner to inspect any dam or reservoir); N.J.S.A. 58:4-5(b), (d) (granting the Commissioner broad remedial powers regarding unsafe dams, including the power to enter onto lands and remove the dam).

The SDA also imposes significant obligations upon " [a]n owner or person having control of a reservoir or dam." N.J.S.A. 58:4-5(a) (emphasis added). Such person must " [i]mplement all measures" required by the SDA or its accompanying regulations, provide any reports or information requested by DEP, and " [i]mplement [438 N.J.Super. 505] any action ordered by the Commissioner" to rectify unsafe conditions. N.J.S.A. 58:4-5(a)(1)-(3).

The Commissioner is vested with broad enforcement powers whenever the SDA, " or any rule or regulation adopted, or permit or order issued pursuant thereto" is violated. N.J.S.A. 58:4-6(a). The remedies available to the Commissioner are numerous and include the right to file a summary civil action seeking injunctive relief, costs and civil penalties. N.J.S.A. 58:4-6(c).

In this case, DEP filed a civil enforcement action alleging violations of the SDA by defendants William R. Cobb, the County of Salem (the County) and Alloway Township (the Township) (collectively, defendants).[1] At issue was defendants' involvement with the Cobb's Mill Dam (the dam), a 288-foot earthen structure that

Page 1148

forms a private lake, Cobb's Mill Lake, in the Township, and along the top of which runs a paved road, Cobb's Mill Road.

All parties moved for summary judgment. Chancery Judge Anne McDonnell granted DEP summary judgment on its amended verified complaint and denied defendants' motions. She entered an interlocutory order thereafter, apportioning the costs of compliance among the three defendants, sixty-five percent to the County, twenty-five percent to Cobb, and ten percent to the Township. After carefully considering the specific penalties requested by DEP, Judge McDonnell entered judgment in favor of DEP and ordered defendants to pay civil penalties totaling $19,250, apportioned $7312.50 to the County, $7932.50 to Cobb, and $4005 to the Township.[2]

[438 N.J.Super. 506] Cobb appeals and argues that the SDA does not apply to him, the " mere owner" of the lake bed without any authority to " 'control, operate or maintain'" the dam in question. He argues that the County is solely responsible because it owns the right of way in which Cobb's Mill Road is situated.

In its cross-appeal, the County argues that material factual disputes regarding its contacts with and control of the dam should have foreclosed summary judgment. In particular, the County argues that the judge mistakenly found as a fact that title to the public right of way for Cobb's Mill Road vested with the County pursuant to a document recorded in the late 19th century.

In its cross-appeal, the Township argues that since it never " maintained, managed, operated or controlled the structure," it cannot be responsible for any violations of the SDA. The Township further contends that since the County installed the structures appurtenant to the roadway, including a culvert for spill-off from the lake, the County is solely responsible for compliance with the SDA.

DEP urges us to affirm in all respects the orders entered by Judge McDonnell. It argues that because Cobb owns the lake and historically maintained the dam, the County owns the " bridge and culverts" that are part of the dam, and the Township owns and maintains the road, all defendants are responsible for the dam structure and any concomitant violations of the SDA.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

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